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Port: The Supreme Court tells Americans we're going to have to work together

The Supreme Court has not said that abortion is illegal. The court has said that Americans can set abortion policy for themselves through elections and legislative acts. The Supreme Court has not said that the EPA can never regulate carbon emissions, only that Congress didn't give that federal agency the authority to do what it was doing.

U.S. Supreme Court in Washington
The U.S. Supreme Court in Washington.
REUTERS/Gary Cameron
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MINOT, N.D. — If there has been a theme to this most recent news cycle, it's one in which reporters and pundits, mostly from a left-of-center viewpoint, have insisted that the Supreme Court is doing dastardly things to us.

The two epicenters for this earthquake of derision are the North Dakota v. EPA and Dobbs v. Jackson decisions, which dealt with emissions regulations and abortion, respectively.

To hear our friends on the left tell it, the Supreme Court, controlled by illegitimate conservative justices, is exercising extra-judicial authority over our society.

Only, it just ain't so. All of the justices were legitimately appointed. Democrats complain that the Trump appointees were made by a president who didn't win the popular vote, but Bill Clinton didn't win the popular vote before he appointed Stephen Breyer and Ruth Bader Ginsburg to the court.

Yes, Senate Republicans held up an Obama appointee so that Trump could fill that vacancy, and while I think that was dirty pool and a terrible precedent for the Senate to set, it also wasn't illegal. And, in the panoply of dirty political tricks, it scores somewhat cleaner than what our friends on the left did to Brett Kavanaugh.

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Nor is there anything extra-judicial about these rulings.

The Supreme Court has not said that abortion is illegal. The court has said that Americans can set abortion policy for themselves through elections and legislative acts.

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The Supreme Court has not said that the EPA can never regulate carbon emissions, only that Congress didn't give that federal agency the authority to do what it was doing.

The message from the court, in these instances, is that we need to make public policy through some degree of consensus.

In recent decades, our society, up to and including our state legislatures and Congress, has had a bad habit of leaning on the courts to find a legal justification for the things we want instead of shaping the law to express what we want through the political process.

That's allowed our political process to grow decadent, and more extreme, as our political leaders, freed to some degree from the need to fashion workable policy through compromise by the black-robed lawyers in the courts, focused their time on titillating their constituencies instead of serving them.

This court, on some key issues, has said no more.

I hope that continues.

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I hope our political leaders, and we voters, too, be it willingly or unwillingly, lean into this new expectation that we use the levers of our representative democracy to make laws we can all live with.

That's a tall order. Rarely does the political process move quickly or give any single faction everything it wants. It's more satisfying to demand a political question be settled through executive order or judicial fiat, skipping over the messiness and frustration of compromise legislation.

More satisfying, but also deleterious to our republic.

"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself," James Madison once wrote.

That's always been the tricky bit of government, but it does happen.

This session of the court was our government controlling itself, and while the ramifications of that are far from pleasing for everyone, can we at least acknowledge that the underlying philosophy is a healthy one?

Maybe it's pollyannish of me to expect our deeply divided society to refocus itself on a new spirit of cooperation, but if this court continues to expect that ballots and lawmakers answer policy questions, and not lawyers legislating from the bench, our society my not have a choice.

We may end up like siblings, forced by scolding parents to help one other clean up the family room before we can go outside and play.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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